Bopal, Ghuma merged; new municipality takes birth

Bopal and Ghuma have been merged and given the status of a municipality. The status of a Nagarpalika is given to places that have a population of above 25,000. While Bopal has a voting population of 35,000, Ghuma has 15,000-odd votes and nearly 1.5 lakh population. Both these areas have been demanding Nagarpalika status for almost seven years now.

The municipality status would also mean a rise in property and conservancy charges for local residents. The government will now have an administrator replacing the individual panchayat bodies and, after a five months, various wards and their boundaries would be declared.

Delhi HC to Centre: Post Rajnish Rai in police

Delhi high court has directed the Centre to give IPS officer Rajnish Rai a posting as an IG in a central police organization within three weeks.

On Monday, a bench of Justices Kailash Gambhir and I C Mehta gave the Centre three weeks to give Rai a posting, after the government communicated that it would appoint him in the police. Earlier, on two occasions, the Centre had not replied to the court's insistence to give a clarification, said Rai's counsel I H Syed.

Last year, Rai was transferred and posted as chief vigilance officer in Uranium Corporation of India Ltd in Jaduguda, Jharkhand, but he moved the Central Administrative Tribunal against his appointment. The CAT agreed with Rai but did not order his transfer to a police organization.

Rai then moved Delhi HC stating he had sought deputation in a central police organization and not a central PSU. The HC kept further hearing of the case on March 20.

Reconverted dalits must get quota benefits: SC

In a landmark judgment, the Supreme Court has ruled that if a person with dalit ancestry reconverts to Hinduism, he would get back his caste status and benefit of reservation.

"A person who is born to Christian parents who had converted to Christianity from Scheduled Caste Hindu can avail the benefit of caste certificate after his embracing Hinduism, subject to other qualifications," a bench of Justices Dipak Misra and V Gopala Gowda ruled on Thursday.

"There cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to parents who were Christian," said Justice Misra, who authored the judgment for the bench.

US work permit for spouses of H-1B visa holders

The US on Wednesday announced that it will provide work permits to spouses of H-1B visa holders beginning May 26, a move that is expected to benefit thousands of talented and professional Indian spouses who come to America but are unable to work.

Under existing laws, spouses of H-1B visa holders, many of whom are Indians, are not eligible to work.

No school before 3 years: HC gives 3 months for rules

Gujarat high court on Monday gave three months to the state government to frame proper rules or to amend the rules prohibiting admission of a kid below three years of age in pre-primary schools and to take action against the schools that violate the Right to Education laws.

In November last year, the state promised the HC that it would amend the law and add a provision to act against the erring schools to strictly implement the central act that prohibits entry of child below three in any kind of school. The state government gave assurance in response to a PIL filed in 2012 by one Kamal Pandya.

Further hearing is kept on August 13 and the state government has been asked to make a statement by then about its action. This happened after petitioner's counsel highlighted that the government did not amend rules, but only issued a circular.

The petitioner argued that Rule 8 of the Right of Children to Free and Compulsory Education Act, 2012 prohibits such admission. The court had also noticed that there is no mechanism in these rules to take action against a school or organization, if it violates the norms and give admission to children less than three years of age. There is no provision of withdrawal of recognition of schools because such pre-primary schools do not require government licence to operate.

In this PIL, the petitioner claimed that the prohibition is provided in a guideline issued in 1996 by the government. It also says that at the time of admission in pre-primary school (playgroup or nursery), the child should not be less than three years on or before August 31 of the respective year. The RTE law passed in 2012 also has got similar provisions.

Narendra Modi’s suit sold for Rs 4.31 crore

Prime Minister Narendra Modi's monogrammed bandhgala suit that had kicked up a political storm was on Friday sold off for Rs 4.31 crore at an auction that saw a scramble among the bidders on the final day for the two-piece ensemble.

The pin-striped navyblue suit that Modi wore for his Summit meeting with the US President Barack Obama on January 25, went to Surat-based diamond trader Lalji Patel and his son after intense bidding in the dying moments of the auction.

"The suit has been purchased for Rs 4.31 crore by Dharmananda Diamond Company's Lalji Patel and his son Hitesh Patel," District Collector Rajendra Kumar announced at the close of the 3-day auction at 5 pm.

Chaos prevailed in the last one hour of the auction and bids flew thick and fast for the suit, which according to reports, was worth Rs 10 lakh. No base price was fixed for the auction of the suit.

The opening bid for the suit with Modi's name in full-- Narendra Damodardas Modi-- vertically embroidered on the fabric to look like golden pinstripes was Rs 11 lakh on Wednesday.

DD can share feed of WC matches with pvt cable operators: SC

Public broadcaster Doordarshan (DD) can continue to share live feed of cricket World Cup matches with private cable operators as the Supreme Court Friday granted a stay on the Delhi High Court order in this regard.

The High Court had allowed the plea of Star India Ltd, which holds the exclusive telecast rights of the Cricket world cup, and had asked Prasar Bharati not to share the live feed of the matches with private cable operators.

A bench headed by Justice Ranjan Gogoi said that its order staying the operation of the high court verdict will continue till it finally decides the petition of public broadcaster Prasar Bharati.

On Thursday, Prasar Bharati had told the apex court that it was not feasible to start a separate channel for showing the cricket world cup matches.

Prior to that, the apex court had sought the response of the public broadcaster on various suggestions mooted by Star India Ltd in this regard. The suggestions included opening of a new DD channel for showing the cricket matches.

Attorney General Mukul Rohatgi, appearing for the Centre and Prasar Bharati, had told the court that it was mandatory for a private channel under the Sports Act and the Cable TV Network Act to share the feeds of matches of "national importance" with Prasar Bharati for providing it on DD's free-to-air terrestrial channels.

Earlier, the apex court had stayed the Delhi High Court judgement barring Prasar Bharati from sharing with cable operators the live feed of the 2015 Cricket World Cup, while asking Star India, BCCI and Prasar Bharati to come out with their proposals to resolve the dispute.

"The position of 2007, we are maintaining it for a while. We thought there is something to hear. We will not bring about a situation abruptly. This arrangement under which DD shows free feed has been there for the last seven years. Let it continue," the bench had said while staying the HC verdict.

Can't bar tainted netas from fighting polls: SC

The Supreme Court on Wednesday said the judiciary could not restrain tainted people from contesting elections as it could not enter the domain of the legislature, which alone was competent to enact a law on this issue.

A bench headed by Chief Justice H L Dattu said the idea of restraining people against whom a court had framed charges for committing heinous offences looked very "attractive and noble" but the court had its limitation and it could not pass such an order.

"In the name of judicial activism, we cannot enter into an area belonging to Parliament. Separation of power is a basic structure of Constitution and we must respect it," the bench, also comprising Justices A K Sikri and Arun Mishra, said.

"It is for Parliament to decide. They know how to run the country and who should run for election. We should not step in," it added.

Husband's illicit affair not always cruelty: SC

The Supreme Court has ruled that a husband's illicit relationship with another woman may not amount to 'cruelty' towards his wife and count as a ground for abetment to her suicide.

The case from Gujarat has striking facts. The husband and wife had a strained relationship and were contemplating divorce. The wife was resigned to her fate and had told her sister that she was facing breakdown of marriage. She had also said that she would leave her marital home. But, later, she consumed poison and committed suicide.

Judge stalls Obama's executive action on immigration

A federal judge temporarily blocked President Barack Obama's executive action on immigration on 16 February  giving a coalition of 26 states time to pursue a lawsuit that aims to permanently stop the orders.

US district judge Andrew Hanen's decision puts on hold Obama's orders that could spare as many as five million people who are in the US illegally from deportation.

The federal government is expected to appeal the ruling to the 5th US Circuit Court of Appeals in New Orleans. The justice department had no immediate comment late Monday night.

Hanen's decision will not have any immediate effect because the first of Obama's orders to expand a program that protects young immigrants from deportation if they were brought to the US illegally as children is not set to start taking effect until February 18. The other major part of Obama's order, which extends deportation protections to parents of US citizens and permanent residents who have been in the country for some years, is not expected to begin until May 19.

In a 2013 ruling in a separate case, Hanen suggested the Homeland Security Department should be arresting parents living in the US illegally who induce their children to cross the border illegally.

The coalition, led by Texas and made up of mostly conservative states in the South and Midwest, argues that Obama has violated the "Take Care Clause" of the US Constitution, which they say limits the scope of presidential power. They also say the order will force increased investment in law enforcement, health care and education.

In their request for the injunction, the coalition said it was necessary because it would be "difficult or impossible to undo the President's lawlessness after the Defendants start granting applications for deferred action."

Congressional Republicans have vowed to block Obama's actions on immigration by cutting off the Homeland Security Department spending for the program. Earlier this year, the Republican-controlled House passed a $39.7 billion spending bill to fund the department through the end of the budget year, but attached language to undo Obama's executive actions. The fate of that House-passed bill is unclear as Republicans in the Senate are six votes shy of the 60 votes needed to advance most legislation.

The White House has said Obama's executive order is not out of legal bounds and that the US Supreme Court and Congress have said federal officials can set priorities in enforcing immigration laws. Past US Supreme Court decisions have granted immigration officials "broad discretion" on deportation matters.

Others supporting Obama's executive order include a group of 12 mostly liberal states, including Washington state and California, as well as Washington, DC They filed a motion with Hanen in support of Obama, arguing the directives will substantially benefit states and will further the public interest.

A group of law enforcement officials, including the Major Cities Chiefs Association and more than 20 police chiefs and sheriffs from across the country, also filed a motion in support, arguing the executive action will improve public safety by encouraging cooperation between police and individuals with concerns about their immigration status.

Developers can't take investors for a ride - SC

Supreme Court on Monday directed real estate giant Supertech to refund money to the flat owners within 30 days, saying "developers can't take investors for a ride."

"You cannot be holding back money of investors who do not want to be relocated in other projects ... Developers can't take investors for a ride. If they want refund of their investments, can we deny them this relief," a bench headed by Chief Justice H L Dattu said.

"We direct the respondent (Supertech) to refund the amount sought by the petitioners. Principal amount shall be paid in 30 days," the bench, which also comprised Justice A K Sikri, said.

The apex court also directed the company to refund the interest within 60 days after the principal amount is paid to the investors.

Earlier, it had directed Supertech to give back money within a month to flat owners who had sought refund of their investments, after the 40-storey residential twin towers Apex and Ceyane in Noida were directed to be demolished by the Allahabad high court.

Holding that flat owners cannot be forced to remain in limbo and wait indefinitely due to litigation, the bench had also directed the company to pay compound interest at the rate of 14 per cent per annum to allottees by the end of October last.

It had turned down the plea of Supertech which had contended that it was not in a position to pay back the money as the interest part has grown more than the principal. The price of the flats, located in the outskirts of Delhi, ranged from 65-90 lakhs.

The bench was today hearing a plea filed two investors who had approached the apex court seeking refund of the money.

The high court, while passing orders for demolition of Towers 16 and 17, had erred in directing the company to refund the consideration received from the petitioners and other such flat owners, the plea said.

Appointment of two information commissioners illegal: HC

Gujarat high court on Thursday held appointment of two information commissioners - BG Panchasara and Shridevi Shukla as illegal.

The HC said that the appointment of both the persons were not legally valid. The HC reached to this conclusion after Praful Desai of NGO Jagate Raho questioned the consultation process adopted by the authorities in appointing Panchasara and Shukla on the post of information commissioner.

Desai raised the issue by citing the documents of their appointment that these persons were not in public life, or that they have got knowledge in a particular field or an experience in a particular field. This is a requirement for selection on this position.

BALU S/O ONKAR PUND & ORS. v. THE STATE OF MAHARASHTRA [2015] INSC 82 (2 February 2015)

Reportable 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 175 OF 2015 (ARISING OUT OF SLP(Crl.) No.8715/2014) 

Balu S/o Onkar Pund & Others Appellant(s) 

VERSUS 

The State of Maharashtra Respondent(s) 

WITH 

CRIMINAL APPEAL Nos.166-167 OF 2015 (ARISING OUT OF SLP(Crl.) Nos.10109-10110/2014) AND CRIMINAL APPEAL Nos.164-165 OF 2015 (ARISING OUT OF SLP(Crl.) Nos.9524-9525/2014)

Abhay Manohar Sapre, J.

1. These appeals are filed by the accused persons against the judgment and order dated 03.02.2014 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215 and 225 of 2011 which arise out of judgment/order dated 11.04.2011 passed by the Sessions Judge, Parbhani in Sessions Trial No.80 of 2008.

2. Accused Nos. 5, 8, 9 & 10 have filed appeal @ SLP(Crl.) No. 8715 of 2014 whereas appeals @ SLP(Crl.) Nos.10109-10110/2014 are filed by accused Nos.1 and 4 and appeals @ SLP(Crl.) Nos. 9524-9525/2014 are filed by accused Nos. 2, 3 and 6.

3. By impugned judgment, the High Court confirmed the conviction and sentences awarded to the appellants by the learned trial Judge. Suffice it to state here that the appellants, apart from other offences were convicted under Section 302 read with Section 149 of the IPC and sentenced to suffer life imprisonment and to pay fine of Rs.10,000/- each, in default of payment of fine, to undergo further six months rigorous imprisonment. The sentences imposed in respect of other offences are of below 7 years and all the sentences have been directed to run concurrently.

4. The question, regard being had to the submissions advanced by the learned counsel for the appellants, is whether the learned trial Judge as well as the High Court was justified in convicting the appellants under Section 302 read with Section 149 IPC considering the genesis of occurrence and the facts in entirety or they should have been convicted under Section 304 Part-I, IPC.

5. In order to appreciate the issue involved in these appeals, it is necessary to state the relevant facts in brief.

6. Apparao Rajaram Pund (A-1) and Madhavrao Rangnathrao Range (PW- 3), both resident of village Itlapur in District Parbhani, were good friends.

Both were agriculturists. Savitribai-the deceased was the wife of Madhavrao Range. Around 25-30 years back, Madhavarao had purchased two kathas of land from Apparao for his cattle shed in the same village and he was also placed in its possession. However, no sale deed was executed between them yet Madhavrao continued to remain in possession of cattle shed all through.

7. In course of time, both entered in politics and formed their respective panels to contest the elections for the post of Sarpanch of the village. In the election, panel led by Madhavrao Range won whereas panel led by Apparao Pund lost. Due to this event, the relations between them were not as cordial as they used to be in the past. Thereafter Apparao started pressurizing Madhavrao Range to vacate the land and hand over the possession of cattle shed else he was threatened to face the dire consequences.

8. On 15.01.2008, the appellants around 7.30 to 8.00 A.M. armed with weapons barged in the cattle shed and started removing the iron sheets fixed on the roof. Madhavrao requested the appellants not to remove the sheets. Since the appellants did not listen to Madhavrao and continued in their operation in removing the sheets, Madhavrao resisted and made attempt to stop them. At that time, Savitribai and Madhavrao's son - Udhav (PW -5), who were also present on the spot, intervened and resisted the appellants from removing the sheets. This led to scuffle between Apparao ( A-1), Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3). Accused Nos. 1, 3 and 4 beat Madhavrao with fist blows and leg kicks and threw him out of cattle shed. Apparao(A-1), who was having bottle containing kerosene, poured the entire kerosene on cattle shed and Sachin ( A-4) set the cattle shed on fire. Savitribai, who was resisting the appellants, caught in contact of fire and received severe burn injuries. On noticing this, Madhavrao tried to enter in cattle shed to save his wife-Savitribai. Gopal (A-2) then inflicted an axe blow on Madhavrao's head due to which he sustained bleeding injury. When Madhavrao cried for help, Navnath and other persons reached there and tried to extinguish the fire. Thereafter they wrapped Savitribai in a piece of cloth and took her to the civil hospital around 10 A.M.

9. In the meantime, Mohammad Bashir Sheikh Umar (PW-2)- Inspector on duty to the Nanal Peth Police Station, got an information that a lady with burn injuries was admitted to the Hospital. Therefore, he rushed to the hospital to record her statement. After getting certification from the doctors that Savitribai was in a fit condition to give her statement, PW-2 recorded her statement (Ex-45). In the meantime, Kishore Achyut Deshmukh (PW-1), In-charge Tahsildar of the area also reached to the hospital and recorded the statement of Savitribai (Ex-P-42).

10. Annasahab Gholap - Assistant Police Inspector (PW-16) then registered the crime being Crime No. 6 of 2008 and started investigation. On the same day, five accused were arrested, panchnama (Ex-P-58) was prepared and several articles were recovered from the spot. On 16.01.2008 at 6.15 a.m., Savitribai succumbed to her injuries while in the Hospital. This led to arrest of some other accused persons and also led to registration of case of offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") along with other offences punishable under Sections 147, 148, 323, 324, 436, 440, 448, 506 all read with Section 149 IPC against the appellants and other accused persons. The case was then committed to Sessions for trial. The accused abjured their guilt and claimed trial. The prosecution examined 16 witnesses. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973.

11. The Sessions judge convicted the appellants-accused and imposed punishment to each appellant as specified above. Challenging the said order, the appellants filed appeals in the High Court against their conviction. The High Court, by impugned judgment, dismissed their appeals and confirmed the conviction and sentence awarded by the trial Court to each of the appellants. Against the said order, the appellants have preferred these appeals by way of special leave before this Court.

12. While assailing the legality and correctness of the impugned order, Mr. Sudhanshu S. Choudhari, learned Counsel for the appellants has argued only one point. According to him, taking the prosecution case on its face value, it was not a case of murder of Savitribai so as to enable the Courts to convict the appellants under Section 302 IPC but it was a case falling under Section 304 Part-I IPC. Learned counsel pointed out that there was neither any intention on the part of any of the appellants to commit the murder of Savitribai nor the appellants had visited the spot with any such intention. Learned Counsel further pointed out that the only intention of the appellants was to take possession of the cattle shed and it was in process of taking forcible possession, the sudden fight ensued between the two groups as also cattle shed caught fire causing burn injuries to Savitribai, which unfortunately resulted in her death. It was also pointed out that if the appellants had come to the spot with an intention to eliminate Savitribai, they or any member of their group would have in the first instance targeted Savitribai, who was present on the spot with her husband (PW-3) and inflicted injury. It was not done. According to learned Counsel, her death was as a result of burn injuries because she was inside the shed, which caught fire. Therefore, learned Counsel urged that this Court should alter the sentence to that of the one punishable under Section 304 Part-I IPC instead of under Section 302 IPC because it was not a case of murder but it was a case of culpable homicide not amounting to murder.

13. Per contra, learned Counsel for the respondent supported the impugned order and urged that two courts have rightly held the appellants guilty for committing murder of Savitribai and hence the appeals merit dismissal calling no interference.

14. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned Counsel for the appellants.

15. Before we examine the factual matrix of the case in hand, it is apposite to take note of the law laid down by this Court on the question as to when culpable homicide is a murder under Section 300 "thirdly" and what are the elements which the prosecution should establish. This Court in Virsa Singh v. State of Punjab, [1958] INSC 18; 1958 SCR 1495, examined this issue in detail.

16. The learned Judge Vivian Bose in his distinctive style of writing and speaking for the Court succinctly stated as under:

"13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand.

14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";

15. First, it must establish, quite objectively, that a bodily injury is present;

16. Secondly, the nature of the injury must be proved; These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

18. Once these three elements are proved to be present, the enquiry proceeds further and,

19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two).

It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

17. Relying on the aforesaid principle of law, recently this Court in SCC 444, again examined the issue as to what relevant factors should be kept in consideration while deciding the question as to whether case in hand falls under Section 302 or 304 Part-I or Part-II. Justice Raveendran speaking for the Court held in para 29 as under:

"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not [pic]converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302.

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

18. Applying the aforesaid principle of law to the facts of the case in hand and keeping the same in consideration when we examine the evidence of the prosecution, we find that this is a case where the appellants should have been convicted for the offence punishable under Section 304 Part-I instead of Section 302 IPC.

19. It is for the reason that firstly, neither there was any motive and nor any intention on the part of any of the appellants to eliminate Savitribai. Secondly, there was no enmity of any kind with Savitribai in person with any of the appellants. Thirdly, the appellants had gone there to take possession of the cattle shed and not with an intention to kill any member of the family of Madhavrao Renge. Fourthly, if at all, if there was some kind of animosity or jealousy then it was towards A-1 whose panel had won the election. Savitribai had nothing to do with election because she never contested the election. Fifthly, despite the appellants armed with weapons, none of them inflicted any injury or gave blow to Savitribai but single blow was inflicted only on Madhavrao, who fortunately survived.

Sixthly, Savitribai died due to sustaining of burn injuries, which she suffered because the appellants ablazed the cattle shed by pouring kerosene on it. In other words, if the appellants had not ablazed the cattle shed then the incident of death of Savitribai would not have occurred. Eighthly, it was a fight on a spur of moment between the two male groups on the issue of taking possession of cattle shed with no intention to kill any one and lastly, in the absence of any overt act attributed to any of the appellants towards Savitribai for inflicting any injury to her, the appellants could not have been convicted for an offence of committing murder of Savitribai so as to attract the rigour of Section 302 IPC and instead they should have been convicted for an offence of culpable homicide not amounting to murder under Section 304 Part I IPC.

20. In the light of foregoing discussion, we allow the appeals in part.

The appellants are accordingly convicted for an offence punishable under Section 304 Part-I IPC instead of Section 302 IPC and each of the appellants is hereby awarded 7 years RI.

21. So far as the conviction and sentence awarded by the courts below under various other sections, as specified above, are concerned, they are upheld calling no interference. All the sentences shall run concurrently.

.............................................J.

[DIPAK MISRA] 

.................................................J.

[ABHAY MANOHAR SAPRE] 

New Delhi;

February 2, 2015.

DEFENCE ESTATE OFFICER v. SYED ABDUL SALEEM & ORS. [2015] INSC 83 (2 February 2015)

REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3137 OF 2010 

DEFENCE ESTATE OFFICER .. APPELLANT 

VERSUS

SYED ABDUL SALEEM & ORS.

VIKRAMAJIT SEN, J.

1 The Appellant has by the pulpit of this Civil Appeal assailed the Judgment and final Order dated 13.3.2007 passed by the Hon'ble High Court of Judicature, Andhra Pradesh (Hyderabad) in CMA No. 1986 of 2003, rendered in the matter of Syed Abdul Saleem v. The Government of Andhra Pradesh, wherein the appeal preferred by the Respondents herein was allowed by the High Court, which enhanced the rate of compensation from Rs.6/- per sq.

yard awarded by the Learned Arbitrator, to Rs.12/- per sq. yard along with the award of 30% solatium and interest at 9% from the date of possession, i.e., 28.07.1970. The subject lands, situated at Village Ibrahimbagh District, Hyderabad, were acquired for setting up of an Artillery Centre at Golconda. The Ministry of Defence, Government of India, accorded its sanction dated 1.12.1969 for the acquisition of land admeasuring 1181.70 acres, at an estimated total cost approximating Rs.35,45,100/-. The lands of the Respondents, admeasuring 2 acres 28 guntas in Revenue Sy. No. 94, and 1 acre 27 guntas in Revenue Sy.No. 95, totaling 4 acres and 15 guntas, were acquired under the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952 by the Central Government. The Form 'J' Notification was published on 22.07.1971. The Competent Authority, viz., the Collector, Hyderabad, offered Rs.39,930/- as compensation in respect of 4 acres 15 guntas, by fixing the rate at Rs.2/- per sq. yard. Further, the Collector also granted interest at 4% p.a. from the date of publication of 'J' Notice to the date of payment; an amount of Rs.45,295.90 was deposited by SDC, LA (Defence) in the Court, vide letter dated 03.02.1975.

2 Dissatisfied with the said compensation, the Respondents thereafter requested for the appointment of a Statutory Arbitrator. The Government appointed the Arbitrator on 21.10.1980, with a direction to him to dispose of the matter within four months. As the sole Arbitrator was unable to dispose of the matter within the prescribed period, the Government once again appointed an Arbitrator on 11.11.1999 to complete the exercise. The Arbitrator enhanced the compensation from Rs.2/- per sq. yard to Rs.6/- per sq. yard along with solatium of 30% and interest at 9% p.a. from the date of taking possession of the acquired land, i.e., 28.07.1970, up till the date of payment. The Arbitrator recorded in his Award that after the failure of the first Arbitrator to dispose of the matter within a period of four months, the Government took 19 years to appoint another Arbitrator.

The Arbitrator observed: "it is no doubt true that the matter was stayed by the Hon'ble High Court for some years on account of proceedings initiated by the claimants 1 and 2 herein. But, even after the above aspect is taken into consideration, it is very clear that the Government is not diligent in prosecuting the matter". The fact of undue delay in the institution of arbitral proceedings having been determined, the Arbitrator applied the principle enunciated in Union of India v. Hari Krishan Khosla (1993) Supp.

2 SCC 149, whereto we shall advert shortly, and awarded the aforesaid payment of solatium and interest.

3 Dissatisfied with the Award, the Respondents filed an appeal before the High Court; Cross Objections were preferred by the Appellant. The High Court allowed the Respondents' Appeal while dismissing the Cross Objections of the Appellant and enhanced the compensation from Rs.6/- per sq. yard to Rs.12/- per sq. yard and upheld the Arbitrator's Award granting solatium of 30% and interest at 9%. The High Court also placed reliance on this Court's judgment in Hari Krishna Khosla.

4 The questions of law raised by the Appellant before us are threefold:

Firstly, whether the Court was justified in granting solatium and interest without considering the fact that there is no provision for awarding these under the Requisitioning and Acquisition of Immovable Property Act, 1952;

secondly, whether the Court was right in ignoring the fact that the Constitutional validity of non-inclusion of the provision for the payment of solatium and interest in the Act has been upheld by this Court in the case of Hari Krishna Khosla and finally, whether the Court was right in enhancing the compensation from Rs.6/- per sq. yard to Rs.12/- per sq. yard without fully appreciating the Cross Objections and evidence proffered by the Appellant? 5 Per contra, the Respondents submit that Hari Krishna Khosla, and its succeeding judgments, all indicate that there is a settled alcove of equity in the jurisprudence pertaining to land requisition. This Court has recognized the hardships suffered by affected/dispossessed parties in requisition proceedings, in cases of extensive delay in the disbursal of compensation, or, as in this case, delay in the initiation and eventuation of proceedings under the statute, and has equitably extended the twin ameliorators of solatium and interest on compensation, albeit their not being available under the requisition Statute.

6 The submissions of both parties hereto having been adumbrated, we find that the Appeal is without merit. The Appellant presents as exceptionable the High Court's enhancement of compensation. But the chiefly objectionable aspect to the impugned judgment and order is, in the submission of the Appellant, the High Court's extra-legal Award of solatium and interest on the principal statutory compensation awardable under the Requisitioning and Acquisition of Immovable Property Act, 1952. This Court has previously, in Hari Krishan Khosla, conducted a thorough analysis of the features of the aforementioned Act apropos the Land Acquisition Act, 1894, and providing cogent rationales therefore, in our humble opinion rightly labelled as "odious" any attempt to make a black-letter comparison of the two enactments. Whilst upholding the Constitutionality of the Requisitioning Act absent the provisions therein of the award of solatium and interest, the Court nevertheless, relying upon a previous pronouncement in Harbans Singh Shanni Devi v. Union of India [disposed of by this Court on 11.02.1985 in Civil Appeal Nos. 470 & 471 of 1985], found it just and proper to uphold award of both solatium (at 30%) and 9 % interest along with the principal statutory compensation, where appointment of the Statutory Arbitrator had been delayed by 16 years. "Equity is a mitigant to the harshness of common law" is a well-known Common Law maxim. Several Benches of this Court, from Hari Krishan Khosla in 1993; the Constitution Bench in Union of India v. Chajju Ram (2003) 5 SCC 568, in the context of the Defence of India Act, 1971; Union of India v. Parmal Singh (2009) 1 SCC 618 and thereafter in Dilawar Singh v. Union of India (2010) 14 SCC 357, have consistently applied mutatis mutandis the equity resting in this maxim to mitigate the harshness of this requisition statute, thereby providing for payment of interest and solatium to affected/ dispossessed parties in cases of extensive protraction, where the statute ex facie provides for neither of these ameliorators. The precedential position being unquestionably clear, we find that the facts before us, displaying dilation by the Appellant of 19 years in reappointment of the statutory Arbitrator, command and not merely commend the application of the precedent. We, therefore, sustain the Judgment of the High Court, and confirm the award of solatium and interest therein, along with the principal compensation amount.

7 Appeal is dismissed. Since this Appeal stood covered on all fours, the Appellant shall pay costs to the Respondents.

............................................J.

[VIKRAMAJIT SEN] 

.............................................J.

[ SHIVA KIRTI SINGH] New Delhi, February 02, 2015.

OSHIAR PRASAD & ORS. v. EMP.IN REL.TO MGT.OF S.C.WASHERY JHARKHA [2015] INSC 84 (2 February 2015)

Reportable 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 1389 OF 2015 (Arising out of SLP(C) No.33509/2011) 

Oshiar Prasad and Others Appellant(s) 

VERSUS 

The Employers in relation to Management of Sudamdih Coal Washery of M/s BCCL, Dhanbad, Jharkhand Respondent(s)

Abhay Manohar Sapre, J.

1. Leave granted.

2. This civil appeal is filed by the unsuccessful writ petitioners against the judgment and order dated 17.06.2011 passed by the High Court of Jharkhand at Ranchi in L.P.A. No. 447 of 2009 which arises out of the order dated 03.09.2009 passed by the learned single Judge of the High Court in C.W.J.C. No. 616 of 1999(R).

3. By impugned judgment, the Division Bench dismissed the appellants' intra court appeal and upheld the order of the writ court, which had dismissed the appellants' writ petition and in consequence upheld the award dated 21.12.1998 passed by the Labour Court in Reference Case No. 75 of 1995.

4. In order to appreciate the controversy involved in this appeal, it is necessary to set out the facts in detail.

5. The respondent - M/s Bharat Coking Coal Ltd (hereinafter referred to as "the BCCL") is a Government of India undertaking. It is engaged in the business of manufacture and sale of various kinds of coal. It has a colliery at Dhanbad, Jharkhand known as "Sudamdih Coal Washery".

6. On 24.07.1974, the BCCL invited tenders for construction of Washery on Turnkey basis for running the colliery. The contract was awarded to one Company - M/s MC Nelly, Bharat Engineering Company Ltd. (hereinafter referred to as "the Contractor"). An agreement was accordingly executed between the BCCL and the Contractor on 29.01.1976. Since the execution of the work was to be done on turnkey basis, the Contractor was required to do every thing to make the Washery operational. The work included the complete design of the Washery, supply of materials required for construction of plant, building, installation of machinery, all kinds of construction of the structures of Washery etc.

7. Pursuant to the contract, the Contractor started the work in 1977 by employing several skilled and unskilled workers and completed the same by December 1979. After completion of the work, the Contractor terminated the employment of all the workers and offered them retrenchment compensation as per the provisions of Section 25 of Industrial Disputes Act, 1947 (in short "the Act") except 39 skilled workers, who were retained to look after the maintenance work of Washery after it was made operationalized. These 39 workers continued to work. After retaining their services for about one year, the Management terminated the services of these 39 employees in January, 1981. These 39 employees raised a dispute demanding their absorption and continuation in service with the BCCL. Since their demands were not accepted, a reference was made under Section 10 of the Act to Industrial Tribunal No. 3 Dhanbad vide Reference Case No. 58 of 1981 to answer the following question:

"Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Sarvashri Gorakh Sharma and 38 others as their regular employees? If not, to what relief are the said workmen entitled?"

8. The Industrial Tribunal by its award dated 03.03.1983 answered the reference in workers' favour and directed that 39 workers be absorbed by the BCCL in their employment as their regular employees and they be given all such consequential benefits to which they were entitled to claim due to their regularization in the services of BCCL. The BCCL did not challenge the award and implemented the directions by absorbing and regularizing these 39 workers in their employment.

9. It may be mentioned that five workers (including the appellants herein), who claimed to be working in the same project, filed Title Suit No. 51/1980 against the BCCL in the Court of Munsif 2nd Dhanbad under Order I Rule 11 of the Code of Civil Procedure, 1908 for declaration that they are entitled to continue in their services under the BCCL and prayed that their services be absorbed and regularized in the services of BCCL with all consequential benefits. They also prayed for an injunction restraining the BCCL from terminating their services pending civil suit.

10. The Trial Court, however, on contest declined to grant the temporary injunction to the plaintiffs. It is not in dispute that during the pendency of the suit, the services of these workers were discontinued. They were, therefore, no more in the employment.

11. By judgment and decree dated 27.05.1983, the trial Court decreed the suit and held that the plaintiff's are entitled to continue in services of BCCL.

12. Felt aggrieved, the BCCL filed Title Appeal No. 71 of 1983 before the Appellate Court. The Appellate Court by judgment and order dated 16.12.1986 dismissed the appeal and confirmed the judgment and decree of the Trial Court.

13. The BCCL pursued the matter further and filed an appeal being Second Appeal No.23 of 1987(R) before the High Court. The High Court, by judgment and order dated 05.03.1993 allowed the Second Appeal and set aside the judgment and decree of the two Courts which had decreed the plaintiffs' suit. It was held that the suit was not maintainable in the light of provisions of Labour laws.

14. Against the aforesaid judgment, the plaintiffs (workers) filed Special Leave Petition being Special Leave Petition (C) No. 4495 of 1994 before this Court. By order dated 14.11.1994, this Court, after granting leave, dismissed the appeal (C.A. No.8403/1994) with a liberty to the plaintiffs/appellants to approach the Industrial Tribunal for claiming any appropriate relief, if so advised.

15. It is with this background, the plaintiffs (five workers) approached the Central Government under Section 10 of the Act and also on behalf of as many as 150 workers espousing their cause in representative capacity for their absorption and regularization and prayed for making an industrial reference to the Industrial Tribunal for its adjudication. The Government acceded to their request and accordingly made the following reference to the Industrial Tribunal to adjudicate:

"Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Ainuel Haque and 150 others (as in the list annexed) as their regular employees? If not, to what reliefs are the said workmen entitled?"

16. The Industrial Tribunal by award dated 21.12.1998 answered the reference against the workers. It was held that they were not entitled to seek their absorption in the Services of BCCL as their regular employees.

The workers, felt aggrieved, filed C.W.J.C.No. 616 of 1999(R) before the High Court. The learned single Judge by orders dated 03.09.2009 dismissed the writ petition and upheld the award passed by the Tribunal. The workers pursued the matter and filed intra Court appeal being L.P.A. No. 447 of 2009. The Division Bench by impugned judgment dismissed the appeal finding no fault in the award. Challenging the said order, the workers filed this appeal by way of special leave before this Court.

17. While assailing the legality and correctness of the impugned judgment, Mr. R.P. Bhatt, learned Senior Counsel for the appellants mainly urged two points. His first submission was that the Courts below erred in not answering the reference in favour of the appellants and thereby Courts below erred in not granting them the relief for which the reference was made. His second submission was that since the identical reference (Reference Case No.58/1981) made at the instance of 39 workers alike the appellants was answered in workers' favour vide award dated 03.03.1983, a fortiori, the present reference being identical in nature should also have been answered in favour of the appellants to maintain the parity. In other words, the submission was that if one set of workers got the benefit earlier in point of time from the Court, the other set of workers similarly placed too should have been granted the same benefits. In the alternative, learned Senior Counsel urged that in any event, the appellants were not paid any retrenchment compensation, for which otherwise they were entitled to get from the Contractor or/and BCCL as per the provisions of Section 25 of the Act read with the provisions of Contract Labour Prohibition and Regulation Act, 1970 and hence to this extent, this Court can still direct either Contractor or the BCCL or both, as the case may be, to pay the retrenchment compensation to the appellants.

18. In Contra, learned Counsel for the respondent-BCCL supported the impugned order and contended that no case is made out by the appellants to interfere in the impugned order and hence the appeal merits dismissal.

19. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the main submissions of the appellants but find substance in the alternative submission.

20. Before we examine the factual matrix of the case in hand, we consider it apposite to take note of law laid down by this Court regarding the powers of the appropriate Government in making reference under Section 10 of the Act and the jurisdiction of the Tribunal while answering the reference. Indeed it is well settled and remains no more res integra.

21. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co. Ltd. vs. The Workmen and Others (AIR 1967 SC 469) was that what are the powers of the appropriate Government while making a reference and the scope and jurisdiction of Industrial Tribunal under Section 10 of the Act.

22. Justice Mitter, speaking for the Bench, held as under:

"(8) ......Under S. 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring "the dispute or any matter appearing to be connected with, or relevant to the dispute,.....to a Tribunal for adjudication" under s. 10(4) "where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."

(9) From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary :

"happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated :"

"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct to it....."

23. The same issue came up for consideration before three Judge Bench in a case reported in Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd.

and Another[1978] INSC 210; , (1979) 3 SCC 762. Justice Y.V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law:

"10. Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33-C(2) of the Central Act.

11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references [pic]being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management."

24. The abovesaid principle of law has been consistently reiterated in M/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs. The Workmen Empoloyed, represented by Firestone Tyre employees' Union [1981] INSC 121; AIR 1981 SC 1626, National Engineering Industries Ltd. vs. State of Rajasthan & Ors., (2000) 1 SCC 371, Mukand Ltd. vs. Mukand Staff & Officers' Association, (2004) 10 SCC 460 and State Bank of Bikaner & Jaipur vs. Om Prakash Sharma, (2006) 5 SCC 123.

25. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when "Industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.

26. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to appellants' absorption in the services of the BCCL on the date of making the reference.

27. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment.

28. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.

29. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of appellants' employment and - whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants.

30. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived.

31. Apart from this infirmity noticed in this case, we have also not been able to find any parity in the facts of the earlier reference (R.C.No.58/81) and the case in hand. As noted above, the earlier reference was made to decide the absorption of 39 workers in the BCCL. This could be made because they were in the service. So far as the present case is concerned, the appellants were not in service.

32. It can safely be noted that merely because the workers in both the references were working in one project by itself was not enough to give them any right to claim parity with the claim of others. So long as, the parity was not proved on all the relevant issues arising in the case, no worker whether individual or collectively was entitled to claim the relief only on the basis of similarity in the status qua employer.

33. In the light of foregoing discussion, we are of the considered opinion that the reference made to examine the issue of appellants' absorption qua the BCCL was incapable of being referred to on the said question and in any event, it was incapable of being answered in favour of the appellants.

34. That apart, when three Courts, despite this infirmity, went into the facts and held that the appellants were not entitled to claim any absorption in the services qua the BCCL, then in our considered opinion, they were right in holding so and we do not find any good ground to go into the factual issues de novo in our appellate jurisdiction. The factual findings recorded by the three Courts are binding on this Court.

35. We, therefore, find no ground to set aside the impugned order and accordingly uphold the same.

36. This takes us to the next question as to whether the appellants are entitled to claim the relief of payment of retrenchment compensation.

Having given our anxious consideration to this issue, we are of the considered view that having regard to the peculiar facts of this case and the reasons, which we have set out hereinbelow, we are inclined to hold that the appellants are entitled to claim the retrenchment compensation from the Contractor/BCCL.

37. It is for the reason that firstly, the respondent in their written statement filed before the Tribunal have offered to pay the retrenchment compensation to all such workers in accordance with the provisions of Section 25F of the Act. Secondly, no documents were filed by the respondent to show that any such compensation was paid to the appellants or to any worker till date by the respondent and lastly, more than three decades have passed and yet the issues of absorption, and/or payment of compensation has not attained finality.

38. Indeed, in similar circumstances, this Court in the case of Pottery Mazdoor Panchayat's case (supra) had directed payment of retrenchment compensation to the workers and made the following pertinent observations in the concluding paras:

"17. It is unnecessary to consider the second question as regards the payment of retrenchment compensation and we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of Section 25FFF of the Central Act, namely, the Industrial Disputes Act, 1947, without the aid of the proviso to that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the worker will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf.

18. We would only like to add that the compensation which will be paid to the workers will be without prejudice to their right, if any, to get employment from the respondent in the new business as and when occasion arises."

39. Following the course adopted by this Court in Pottery Mazdoor Panchayat (supra), we direct the Industrial Tribunal to verify the case of the appellants (150 or so) for deciding each worker's claim for payment of retrenchment compensation to him/her as per the provisions of Section 25F of the Act and accordingly he/she be paid retrenchment compensation. In case any worker has expired then his/her compensation amount be paid to his/her legal representative after making proper verification of the case.

40. We, however, make it clear that the respondent would not raise any objection about the maintainability of workers' claim nor would raise any objection on merits before the Tribunal and the inquiry would only confine to determine the quantum of retrenchment compensation payable to each worker.

41. The appellants and respondents would appear before the Tribunal on 16.02.2015 and file necessary documents to enable the Tribunal to verify the claim of each worker for determining the quantum of compensation. The Tribunal would issue notice to the Contractor to enable them to participate in the proceedings in the light of provisions of Contract Labour Prohibition and Regulation Act, 1970. The appellants and all such workers can be represented through recognized Union before the Tribunal.

42. The entire exercise should be completed and payment be made to the workers within six months.

43. With these directions, the appeal stands disposed of.

.............................................................J.

[FAKKIR MOHAMED IBRAHIM KALIFULLA] 

...............................................................J.

[ABHAY MANOHAR SAPRE] New Delhi;

February 02, 2015.

SH.AJAY RAMDAS RAMTEKE AND ANR v. MAHANAGAR SUDHAR SAMITI, AKOLA & ORS [2015] INSC 85 (2 February 2015)

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1388 OF 2015 (Arising out of S.L.P. (Civil) No. 28853 of 2013) 

Ajay Ramdas Ramteke and Anr. ... Appellants 

Versus 

Mahanagar Sudhar Samiti, Akola & Ors. ...Respondents

Prafulla C. Pant, J.

Leave granted.

2. The question involved in this appeal is whether respondent no. 1 - Mahanagar Sudhar Samiti, Akola, an "aghadi" or "front" formed by some of the elected councillors of respondent no. 5 -Akola Municipal Corporation in March, 2013, without its registration under second proviso to Section 31A(2) of the Maharashtra Municipal Corporations Act, 1949 (for short "1949 Act") stood registered and recognized as a party or group for the purposes of representation, and as such whether the petition filed by respondent no.1 before the High Court challenging the Standing Committee constituted under the 1949 Act was maintainable.

3. Brief facts of the case are that elections were held for Akola Municipal Corporation in February, 2012, wherein 73 councillors were elected to the House. From amongst elected members, initially 23 members, and thereafter in all 26 members claimed to have formed an "aghadi" (group of persons) with the name "Mahanagar Sudhar Samiti". On 5.3.2012, within one month of the election, leader of the said group submitted an application before the Divisional Commissioner for its registration under second proviso to Section 31A(2) of the 1949 Act. It appears that in the meantime there was a controversy as to whether two of the elected members projected to be part of the group were actually members of the aghadi (respondent no.1) or another group Akola Vikas Mahaaghadi (present respondent no.6). The said issue was decided by the High court by a detailed judgment dated 08.05.2012 passed in writ petition no. 1426 of 2012 holding that the aforesaid two members were not part of either respondent no. 1 or 6. Thereafter, the Divisional Commissioner passed a detailed order on 28.08.2012 whereby the application for registration of respondent no.1 as aghadi filed in March 2012 was rejected. Said order was not challenged by any party. However, meanwhile Resolution dated 29.04.2013 was passed by the Akola Municipal Corporation whereby the present appellants and six others (present respondent nos. 9 to 14) were nominated in the Standing Committee as members thereof. The Resolution was challenged by respondent nos. 1 to 3 by filing a Writ Petition no. 2571 of 2013 before the Nagpur Bench of the High Court of Judicature at Bombay. A preliminary objection was raised on behalf of Mayor (respondent no. 4) before the High Court that the writ petition was not maintainable.

Defending the Resolution dated 29.04.2013, it was stated that there was no illegality in nominating the members whose names figured in the Standing Committee constituted vide Resolution dated 29.04.2013.

4. After hearing the parties, the High Court took the view that since the application for registration, in the register maintained in Form IV as per Rule 5 of Maharashtra Local Authority Members' Disqualification Rules, 1987 (for short "1987 Rules"), was made within time, the respondent no.1 should have been treated as separate aghadi, and as such non-inclusion of names of its members for proportional representation in the Standing Committee invalidates the Resolution dated 29.04.2013. Accordingly, the High Court quashed the Resolution dated 29.04.2013 and allowed the writ petition.

5. Aggrieved, by the above order dated 14.08.2013, passed by the High Court, in Writ Petition No. 2571 of 2013, this appeal is filed by the appellants who were respondent nos. 6 and 7 before the High Court, through special leave.

6. It is pleaded on behalf of the appellants that the High Court has erred in law by accepting the writ petition filed by respondent nos. 1 to 3 which was not maintainable. It is stated that the High Court ignored the fact that vide order dated 28.08.2012, the Divisional Commissioner had rejected the application for registration moved by respondent No. 1 as separate aghadi. It is further pleaded that registration of post-poll group or alliance was mandatory under Section 31A of 1949 Act read with 1987 Rules. It is argued before us that unregistered aghadi is not an aghadi in the eyes of law, and as such, neither the same could have been recognized for its representation in the Standing Committee nor maintain the writ petition in the High Court.

7. On the other hand, on behalf of the respondent nos. 1 to 3, who were the writ petitioners before the High Court, contended that since there was no rule or procedure prescribed for registration as such their only duty was to intimate the Divisional Commissioner under Rule 3 of 1987 Rules about the formation of aghadi, and the rest was the ministerial work to be completed. The contesting respondent nos. 1 to 3 placed their reliance in the case of Jeevan Chandrabhan Idnani and Another vs.

Divisional Commissioner, Konkar Bhawan and others (2012) 2 SCC 794.

8. Before further discussion, we think it just and proper to mention as to what is the meaning of word 'Aghadi', and for what purpose it is constituted by the councillors of Corporation. Word 'aghadi' is defined in Clause (a) of Section 2 of Maharashtra Local Authority Members' Disqualification Act, 1986 (for short "1986 Act") which reads as under:

"2. In this Act unless the context otherwise requires,- "aghadi" or "front" means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority."

9. Object of allowing elected members to form an aghadi as post-poll alliance is to give proportional representation of its members to the various standing committees constituted for functioning of the Corporations.

10. Second proviso to sub-section (2) of Section 31A of 1949 Act allows the concillors to form an aghadi after the election to a Municipal Corporation. Section 31A reads as under:

"31A. Appointment by nomination on Committees to be by proportional representation - (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, in the case of the following committees, except where it is provided by this Act, that the appointment of a Councillor to any Committee shall be by virtue of his holding any office, appointment of Councillors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by nominating Councillors in accordance with the provisions of sub-section(2):- Standing Committee;

Transport Committee;

Any special Committee appointed under section 30;

Any ad hoc Committee appointed under section 31"

(2) In nominating the Councillors on the Committee, the Corporation shall take into account the relative strength of the recognized parties or registered parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups in the Corporation, after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group:

Provided that, the relative strength of the recognized parties or registered parties or groups or aghadi or front shall be calculated by first dividing the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognized parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted:

Provided further that, for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under this Act, the recognized parties or registered parties or groups, or elected Councillors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members' Disqualification Act, 1986 (Mah. XX of 1987), within a period of one month from the date of notification of election results, from the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front.

(3) If any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation shall be final".

11. In Jeevan Chandrabhan Idnani (supra), this Court has made following observations interpreting the second proviso of sub-section 2 of Section 31A:

"26. The second proviso to sub-section (2) of Section 31-A enables the formation of an aghadi or front within a period of one month from the date of notification of the election results. Such an aghadi or front can be formed by various possible combinations of Councillors belonging to either two or more registered parties or recognised parties or independent Councillors. The proviso categorically stipulates that such a formation of an "aghadi" or "front" is possible notwithstanding anything contained in the Disqualification Act. Because an "aghadi" or "front", as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals.

27. Therefore, the second proviso to Section 31-A(2) of the Municipal Corporations Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Sections 2(a) and 3(2) of the Disqualification Act, would enable the formation of post-electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31-A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identity and merge into the aghadi/front or bring into existence a new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an aghadi or front, the same is required to be registered. The procedure for such registration is contained in the Maharashtra Local Authority Members' Disqualification Rules, 1987.

28. Once such an aghadi is registered by a legal fiction created under the proviso, such an aghadi is treated as if it were a pre-poll aghadi or front. The proviso further declares that once such a registration is made, the provisions of the Disqualification Act apply to the members of such post-poll aghadi. We do not propose to examine the legal consequences of such a declaration as it appears from the record that a complaint has already been lodged against Respondents 6 to 13 herein under the provisions of the Disqualification Act. [pic]The limited question before us is whether the first respondent was legally right in registering an aghadi or front formed after the lapse of one month from the date of the notification of the election results.

XXX XXX XXX XXX

30. In substance, the High Court held that the interpretation of Section 31- A depends upon the tenor and scheme of the subordinate legislation. Such a principle of statutory construction is not normally resorted to save in the case of interpretation of an old enactment where the language is ambiguous.

We are conscious of the fact that there is some difference of opinion on this principle but for the purpose of the present case we do not think it necessary to examine the proposition in detail as in our opinion the language of Section 31-A is too explicit to require any other external aid for the interpretation of the same. Subordinate legislation made by the executive in exercise of the powers delegated by the legislature, at best, may reflect the understanding of the executive of the scope of the powers delegated. But there is no inherent guarantee that such an understanding is consistent with the true meaning and purport of the parent enactment.

31. Such variations of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31-A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties [pic]beyond the abovementioned period of one month would be plainly in violation of the language of the second proviso to Section 31-A."

12. We have already discussed that an aghadi formed after election is required to be registered as provided in sub-section (2) of Section 31A of 1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a register of information as to councilors and members, provides as under:

"Register of information as to councilors or members.- (1) The Commissioner in the case of a councilor of a Municipal Corporation and the Collector, in the case of any other councilor or member, shall maintain in Form IV, a register based on the information furnished under rules 4 and 5 in relation to the councilor of a municipal party, Zilla Parishad party or, as the case may be, member of a Panchayat Samiti Party."

13. There is no detailed procedure prescribed for registration of an aghadi. It is evident from Rule 5 quoted above, that power to register vests with the Commissioner. The word "Commissioner" is defined in clause (c) of Rule 2 of 1986 Act and the same is reproduced below:

"(c) "Commissioner" means the Commissioner of a revenue division appointed under Section 6 of the Maharashtra Land Revenue Code, 1966".

14. In earlier round, respondent no. 1 filed writ petition no. 1426 of 2012 challenging Resolution dated 20.03.2012 passed in the General Body Meeting of Akola Municipal Corporation which was decided by the High Court with the following two concluding paragraphs:

"30. This discussion leads to conclusion that Respondent Nos. 5 & 6 could not have been treated as members either of Respondent No. 4 or then of the petitioner. The proportionate representation of the Petitioner &

Respondent No. 4 on Standing Committee needed to be worked out by ignoring them. The Petitioner therefore, is rightly given 5 members. But then there has to be proportionate reduction in representation allotted to Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33.

It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat remains vacant and decision about it cannot be taken as Respondent No. 3 Divisional Commissioner has still not completed his exercise of verification. First proviso to Section 31A(2) does not prohibit Corporation from filling in such vacancy by nominating on the Committee any member not belonging to any such party or group. If no such member is available, Respondent Nos. 1 to 4 as also Petitioner have to start working with Standing Committee of 15 members only & continue till the Respondent No. 3 decides on the validity of change or then status of Respondent Nos. 5 & 6. It is settled position that law does not expect compliance with the impossibilities. Holding of a General Body Meeting for this limited purpose is essential. If Respondent 3 finds Respondent Nos. 5 & 6 not disqualified, Corporation can thereafter, proceed to fill in the sixteenth vacancy.

31. Accordingly, Respondent No. 4 Aghadi as also Respondent Nos. 1 & 2 are directed to bring down representation of Respondent No. 4 on Standing Committee from 8 to 7. Proceedings and meeting conducted on 20.03.2012 are quashed & set-aside to that extent. Respondent Nos. 1,2 & 4 to hold a general body meeting to bring down the strength of representatives of Respondent No. 4 from 8 to 7. Respondent 1 Corporation is free to fill in resulting vacancy by nominating on the Standing Committee a Councillor as per first proviso to Section 31A(2) of the Corporation Act in this meeting.

Said general body meeting be held within period of three weeks from today. If 16th seat in Standing Committee can not be filled in, the Respondent Nos. 1 to 4 shall function with Standing Committee of 15 members only. Petition is thus partly allowed. Rule is made absolute in above terms. However, there shall be no order as to costs."

But in that round of litigation, Divisional Commissioner was neither a party, nor any direction was sought against him.

15. Shri Nikhil Nayyar, learned counsel for the respondent no. 1 referred to a copy of letter dated 06.05.2013 (Annexure R1/5) annexed with the reply on behalf of respondent no. 1 and contended that respondent 1 was registered. Per contra on behalf of appellants, Shri Shekhar Naphade, learned senior counsel drew our attention to the copy of order dated 28.8.2012 (Annexure P-5) whereby application for registration of Mahanagar Sudhar Samiti - respondent no. 1 as an aghadi was rejected by the Divisional Commissioner, Amravati.

16. Copy of communication dated 06.05.2013 (Annexure R-1/5) issued by Municipal Secretary, Akola earlier informing that Mahanagar Sudhar Samiti as one of the registered aghadi is re-produced below:

"O.N.AMNC/NS/25/12 Office of Municipal Secretary Akola Municipal Corporation Akola Dated.6/5/13 To Shri Sunil Meshram Member, MNC Ward no.8-A Subject - Regarding the list of Gatneta and Aghadi which are approved by Divisional Commissioner, Amravati.

|S. No | Name of |Gatneta | | |Party/Aghadi/Gat | | |1) |Akola Vikas Mahaaghadi |Shri Madan Babulal Bhargad| |2) |Mahanagar Sudhar Samiti |Shri Harish Ratanlal | | | |Alimchandani | |3) |Shivsena |Smt. Manusha Sanjay Shelke| |4) |Akola Shahar Vikas Aghadi |Shri Beni Sh. Ganga | | | |Beniwale. | The Divisional Commissioner Amravati had issued a letter bearing no.

MNC/Namuna 5/akola/MNC/12/2012 Dtd.7/6/2012 by which it is communicated to Municipal Corporation that four Aghadi and Gatneta are registered under the provisions of Maharashtra Local Authorities Members Disqualification Act and the list of the same is appended herewith Sd/- Municipal Secretary Akola"

17. Before above communication the Divisional Commissioner had passed order dated 28.08.2012, relevant extracts of the same are reproduced as under:

"BEFORE SHRI GANESH THAKUR, DIVISIONAL COMMISSIONER, AMRAVATI DIVISION, AMRAVATI.

Case No. 3/Akola M.C/2011-12 Shri Harish Ratanlalji Alimchandani, Party leader, Mahanagar Sudhar Committee, Akola, Municipal Corporation, Akola, R/o.

Aalsi Plots, Tq & Distt. Akola ....Applicant Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Municipal Corporation, Akola, R/o. Geeta Nagar, Tq &

Distt. Akola ...Applicant Adv. Milind Vaishnav.... On behalf of Applicant No. 1 O R D E R As per Maharashtra Local Authority Membership Disqualification Act, 1986 (hereinafter referred to as "Disqualification Act") and Rule 3(a) of the Maharashtra Local Authority Membership Disqualification Rules, 1987 (hereinafter referred to as "Disqualification Rules") thereunder, on 05/03/2012 Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti, Akola, Municipal Corporation, Akola submitted proposal in prescribed form for registration of "Mahanagar Sudhar Samiti, Akola", sponsored by " Bhartiya Janata Party" in the registration book of Divisional Commissioner Office. Alongwith the present application the applicant no.1 has filed list of members (List of Councillors). The applicant no.2, Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Aghadi, Municipal Corporation, Akola on 16/03/2012 submitted proposal in prescribed form as per provisions of Disqualification Act for registration of Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress in registration book of the office of Divisional Commissioner. Alongwith the proposal in prescribed form the applicant has submitted list of total 35 members (List of Councillors).

On scrutiny of both the proposals, it comes to the notice that, in the proposal submitted by applicant no.1 the name of Shri Sanjay Babulal Badone is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone is at Sr.no.21. So also, in the proposal filed by applicant no. 2 the name of Shri Sanjay Babulal Badone is at Sr.no.(Five) (2) and name of Sau. Madhuri Sanjay Badone is at Sr.no.(Five)(3). As the names of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone are mentioned in both the lists, confusion has been created as to which vanguard/front they are members. Therefore, by notice dt. 23/03/2012 both the applicants and City Secretary of Municipal Corporation were informed to remain present for hearing on 27/03/2012 alongwith original documents and proof.

On 27/03/2012 both the applicants alongwith their Advocates and City Secretary of Municipal Corporation Shri Gajanan Madhusudan Pande remained present for hearing. In the said case, Adv. G.B. Lohiya advanced argument on behalf of Municipal Corporation, Akola. Adv. Santosh Rahate advanced his argument on behalf of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ In the affidavit dt. 14/03/2012 sworn by Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone there is no name and signatures of witnesses and on 14/03/2012 the said affidavit has been recorded at Sr.no.174/12 by Notary Shri R.R. Deshpande, Adv. As per provisions of Indian Evidence Act, the said affidavit cannot be held as complete unless attested. Therefore, there is no sufficient scope to treat the said affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone as valid.

After considering all the aspects above in totality and on careful perusal of concerned documents filed in the case it comes to the notice that, from the entry made by Stamp Vendor on the stamp papers, the stamp papers appear to have been purchased on 23/02/2012 for the affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone attached to the proposal dt.

05/03/2012 submitted by applicant no.1 Shri Harish Alimchandani to the Divisional Commissioner for registering the Mahanagar Sudhar Samiti sponsored by Bhartiya Janta Party as per provisions of rule 3 of the Disqualification Rules. Yet the date of attestation being not as '23/02/2012' it is "22/02/2012". How the affidavit has been sworn on 22/02/2012 by purchasing stamp papers on 23/02/2012 is an incomprehensible aspect. He filed Xerox copies of said affidavit after receipt of notice in the case before the Divisional Commissioner. It is a notable aspect that, Shri Harish Alimchandani has not submitted original copies of affidavits during hearing of present case.

Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have been elected from Prabhag no. 34-A and no.34-B in the Akola Municipal Corporation elections as independent candidates. As the applicant no.1 and applicant no.2 have failed to file any kind of reliable documents in regard as to in which front created in the Akola Municipal Corporation Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have participated, I have come to the conclusion that it does not become clear that definitely to which vanguard/Committee/front out of Mahanagar Sudhar Committee sponsored by Bhartiya Janta Party or Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress, Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone are attached.

Therefore, the following order is being passed.

ORDER As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti, Akola, Municipal Corporation, Akola in prescribed form for registration of "Mahanagar Sudhar Samiti, Akola", sponsored by Bhartiya Janata Party on 05/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected.

As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Akola, Municipal Corporation, Akola in prescribed form for registration of " Akola Vikas Mahaaghadi Akola", sponsored by Bhartiya Rashtriya Congress Party on 16/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected.

The said order passed today on 28th August, 2012 under my signature and seal.

Sd/- 28.08.2012 (Ganesh Thakur) Divisional Commissioner, Amravati"

18. We have gone through the above two documents. Order dated 28.08.2012 passed by Divisional Commissioner, Amravati, whereby the application for registration was disposed of, shows that the application of the writ petitioners was rejected as affidavits of Sanjay Babulal Badone (respondent no. 14) and Smt. Madhuri Sanjay Badone were not complete. The two, who were elected from Prabhag no.31 and Prabhag no. 34-B as independent candidates, failed to file any document to show as to which group they belonged. Their names figured in two groups.

19. In the order dated 28.08.2012 the Divisional Commissioner also referred to a serious infirmity in accepting the proposal, as he found that the affidavit was sworn to and attested on 22.02.2012, whereas the stamps were purchased on 23.02.2012 which the Divisional Commissioner held to be an incomprehensible act of the proposer. Such serious infirmities which weighed with the Divisional Commissioner in passing the order of rejection dated 28.08.2012 cannot be found fault with. Considering the Scheme of the 1987 Rules, we are convinced that it was incumbent upon the Divisional Commissioner to hold a meaningful exercise of scrutinizing the proposal for registration and pass a positive order of registration and then alone the exception carved out under Section 31A(2) of the 1949 Act, even for the limited purpose to get rid of disqualification under the 1987 Rules can be allowed to operate. Viewed in that respect also the order dated 28.08.2012 assumes greater significance and, therefore, unless and until the said order was set aside in the manner known to law, the formation of the aghadi as claimed by the first respondent could not have come into effect.

20. It is not disputed that no one challenged the order dated 28.08.2012 passed by the Divisional Commissioner, as such the same has attained finality. That being so, the Mahanagar Sudhar Samiti, Akola (respondent no.1) cannot be said to be a registered group as required under second proviso of sub-section (2) of Section 31A of the Act of 1949. In our opinion, the High Court has erred in law by ignoring the above order of the Divisional Commissioner, and holding that respondent no. 1 stood registered. If there was objection to registration of an aghadi, on the ground that names of certain members were falsely or wrongly shown in the list, the Commissioner had no option but to verify the same. And, in such cases, unless the verification is done, an aghadi can not be said to have got registered, by merely submitting an application within one month of election to Municipal Corporation. Had the writ petitioners challenged order dated 28.08.2012 passed by the Divisional Commissioner, with the Resolution dated 29.04.2013, the situation would have been different. But in the present case, order of Divisional Commissioner rejecting application for registration has attained finality, and same cannot be ignored. As such, writ petition filed by respondent nos. 1 to 3 questioning validity of resolution dated 29.04.2013 was liable to be dismissed.

21. Therefore, this appeal deserves to be allowed. Accordingly, the appeal is allowed and impugned order dated 14.8.2013 passed by the High Court in Writ Petition no. 2571 of 2013 is hereby set aside, and the Resolution dated 29.04.2013 shall stand restored. No orders as to costs.

.....................................................J.

[Fakkir Mohamed Ibrahim Kalifulla] 

......................................................J.

[Prafulla C. Pant] 

New Delhi;

February 02, 2015.